Supreme Court justices wary of sweeping vote on gay marriage

However, Kennedy also publicly mulled whether on same-sex marriage could be regarded as a form of sex discrimination, since some individuals are denied marriage licenses based on their gender. “It’s a difficult question I’ve been trying to wrestle with,” he said.

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25 gay-rights milestones

Justice Antonin Scalia, a conservative on the court, said there are unresolved questions about whether children of same-sex couples are as well-adjusted as other children. “Certainly … there’s no scientific answer to that question at this point in time.” However, he insisted he wasn’t taking a stance one way or another on that issue.

Meanwhile, liberal Justice Ruth Bader Ginsburg said it’s not an issue in this case, since California already allows same-sex couples to raise children and to adopt.

The lawyer for same-sex marriage opponents, former Reagan administration official Charles Cooper, warned that allowing same-sex marriage would “refocus” the institution away from producing children and in favor of the emotional needs of adults.

“The state’s interest, society’s interest in what we have framed as responsible procreation, is vital,” Cooper argued.

Justice Elena Kagan scoffed at the notion that the justification for marriage was limited to child-rearing. She noted that older people are permitted to marry even though they’re unlikely to reproduce.

“I can just assure you, if both the woman and the man are over 55, there are not a lot of children are coming out of that marriage,” she said.

That prompted Scalia to jump in and suggest that the state might not want to invade people’s privacy by asking them for details like whether they’re fertile or not. He then quipped: “Strom Thurmond was not chairman of the Senate committee when Justice Kagan was confirmed.” The joke did not draw much laughter.

Cooper did manage one argument in rebuttal: He suggested that marriages, even of the old, essentially tie couples up and reduce the possibility that one of the spouses will have an out-of-wedlock child.

The lawyer for same-sex marriage advocates, Bush Administration solicitor general Ted Olson, said the ability to procreate has never been a prerequisite for the right to marry.

“This is a measure that walls off the institution of marriage, which is not society’s right. It’s an individual right that this court again and again and again has said the right to get married, the right to have the relationship of marriage is a personal right. It’s a part of the right of privacy, association, liberty, and the pursuit of happiness,” Olson declared.

Some of the most heated exchanges came as Scalia pressed Olson to explain precisely when limiting marriage to heterosexual couples became unconstitutional.

“I’m curious, when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? …. When did the law become this?” Scalia asked.

“May I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools?” Olson replied.

Scalia said the answer was in 1868, with the passage of the Constitution’s equal protection clause, but he added: “Don’t give me a question to my question.”

After some sparring between the pair, Olson said the practice of barring gays from marrying became unconstitutional “when we as a culture determined that sexual orientation is a characteristic of individuals that they cannot control.”

Several justices clearly did not think much of the Obama Administration’s arguments that the court should rule same-sex marriage bans unconstitutional in states where robust civil union laws give same-sex couples essentially all the benefits and duties of marriage except the name “marriage.”